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Avoid will contests by ensuring capacity

On behalf of Bingham Legal Group PC posted in Estate Planning on Friday, April 15, 2016.

The point of making a will is to transfer assets to your beneficiaries in the manner you choose. If the will is contested and possibly nullified in probate, it renders the entire effort worthless.

One of the most common ways will contests arise is through claims of lack of capacity. To avoid will contests and probate litigation down the road, it is critical to make sure you create your will and other estate planning in a matter that minimizes the risk of these challenges.

Why is capacity important?

A will expresses the wishes of the testator (the person creating the will). Capacity is the ability to make sound judgments and express them accurately. A person's will would not be valid without the ability to make sound judgments.

How is capacity compromised in the estate planning process?

The two most frequent capacity challenges in probate involve soundness of mind and undue influence.

Soundness of mind

If a testator lacks mental capacity to make intelligent decisions or express them, the will cannot be considered a valid expression of the testator's true wishes. Often challenges of soundness of mind are brought up when a testator is elderly or has cognitive disabilities.

Undue influence

Complete freedom is critical to capacity. When someone creating will is being coerced or mentally and emotionally manipulated in some way, that testator would lack the requisite freedom to make a valid will.

What can be done to ensure capacity?

If you are about to create or modify a will, you can do a couple things to minimize the risk of your will being contested.

First, you should create your estate plan as soon as possible. Lack of capacity due to an unsound mind most often come up due to age. It is much less likely that someone would contest the soundness of mind of a younger testator, so make your will as soon as possible. Alternatively, it might be a good idea to have some cognitive tests done and include that documentation in your estate plan to preemptively eliminate any challenges to your cognitive capacity.

It is also helpful to clearly establish lack of undue influence. If you are in a relationship with someone who might be seen as coercing you or manipulating your thought process at all, talk with an experienced lawyer to make sure your will does not face challenges of this kind.

Even if you know you are not being manipulated in any way, it's important to think about any challenges that might arise. If you are planning to leave substantial assets to a caregiver who you is with you often or to someone who is a relatively new person in your life, suspicions could arise. Even if there are no real issues in this regard, any undue influence challenge could present serious problems in probate.

The most important thing you can do for any estate planning matter in Michigan is talk with an experienced lawyer who can help you avoid probate problems by creating a will in a way that will minimize the risk of capacity challenges.

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